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Religious discrimination Q&As

​​Commonly asked questions on the legal issues relating to religious discrimination in the workplace​

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Legislation overview

The principal legislation governing discrimination on the grounds of religion or belief is the Equality Act 2010.

The following aspects of the European Human Rights Convention are also relevant and will be relied on by some employees:

Article 9 - guarantees freedom of thought, conscience and religion

Article 14 - provides that rights and freedoms shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

These Articles are incorporated into UK law through the Human Rights Act 1998. Article 9 in particular provides protection for the right to express or manifest religion or belief in worship, teaching, practice and observance. However, manifestation by one person of their belief might have an impact on others so this right can be restricted in certain circumstances. Article 14 is not a free-standing right; it can operate only when another Convention right is engaged.

Other legislation which may apply to religious discrimination claims includes:

Racial and Religious Hatred Act 2006

Protection from Harassment Act 1997

Employment Rights Act 1996 (especially sections 45 and 101 which protect shop and betting workers who do not wish to work on Sundays)

The Equality Act 2010 sets out a number of protected characteristics, including the protected characteristic of religion, or religious or philosophical belief.

The definition of religion or belief in the Act includes any:

religion

religious belief

philosophical belief

and a reference to religion or belief includes:

a reference to lack of religion

a reference to lack of belief.

Religious belief

Religion or belief is a broad definition. The main restriction is that a religion must have a clear structure and belief system.

Denominations or sects within a religion, such as Protestants and Catholics within Christianity, can be considered to be a religion or belief.

Philosophical belief

A philosophical belief must be genuinely held. In addition, a philosophical belief must:

Be a belief and not an opinion or viewpoint based on the present state of information available.

Be a belief as to a weighty and substantial aspect of human life and behaviour.

Attain a certain level of cogency, seriousness, cohesion and importance.

Be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.

So, for example, a belief in the supreme nature of the Jedi Knights is not sufficiently serious (although some would argue with this). Similarly, any cult involved in illegal activities would not be covered.

Absence of religion or belief

It is clear under the Act that:

non-believers are expressly covered

a reference to religion or belief will encompass a reference to lack of religion or belief and

a philosophical belief does not have to be ‘similar’ to a religious belief .

Range of religions or beliefs

Examples given within the guidance notes to the Act and from previous case law confirm that the following religions or beliefs are covered:

Muslims

Christians

Hindus

Jews

Sikhs

Buddhists

Jains

Rastafarians

Baha'ism

Druids

Pagans

Wiccans

Zoroastrians

Humanists

Atheists.

In Holland v Angel Supermarket Ltd and another (2013) a Wiccan follower won her claim of direct discrimination on grounds of religion and belief. She had switched her shifts at a convenience store to celebrate All Hallows’ Eve and was mocked and later dismissed. The store was owned by a Sikh who gave a shocked reaction to the revelation that she was a Wiccan.

Other beliefs which have been found to count as protected 'beliefs' include:

A belief in the higher purpose of BBC values and public service broadcasting (Maistry v BBC 2011). A senior journalist asserted a philosophical belief that was protected but it was a belief in the employer’s core values too and there was not even the beginnings of a case that he had been discriminated against because of this belief. (He was later ordered to pay £10,000 costs for failure to provide sufficient details of his finances and presenting the case in an unreasonable way).

A humanist belief held by a violinist in the London Philharmonic Orchestra who was disciplined after publicly protesting against the Israel Philharmonic Orchestra performing at the 2011 Proms (Streatfeild v London Philharmonic Orchestra Ltd (2012). See the related Q Is there a religion or belief discrimination claim if the employer was entirely ignorant of the employee’s belief?

A Christian who believed that lying is wrong (Hawkins v Universal Utilities Ltd t/a Unicom (2012). The employment tribunal held that a telesales agent's belief that potential customers should not be deceived could be protected under the Equality Act 2010. Although the belief in truthfulness was capable of protection, this employee ultimately lost because he did not have enough evidence that he had actually been asked to lie to customers.

Political beliefs - see the related Q Is an employee protected if they are dismissed for their political views?

Beliefs which have been found not to count as 'beliefs' protected by the Act include:

A belief that the terrorist attacks of 9/11 and 7/7 were authorised by the British and American Governments. This belief in a worldwide evil and satanic media conspiracy failed because the beliefs were absurd and were not cogent (Farrell v South Yorkshire Police Authority (2011).

A belief that people should wear a remembrance poppy from 2 November until Remembrance Sunday each year was not considered sufficiently weighty to qualify as a belief (Lisk v Shield Guardian Co Ltd and others (2011).

A belief in the 'human or moral right to own the copyright and moral rights of creative works and outputs’ was found not to be protected under the Equality Act 2010. The EAT held the belief lacked sufficient clarity or cogency to qualify as a belief (Gray v Mulberry Company (Design) Ltd (2018).

The case of Grainger plc v Nicholson (2009) is extremely useful for guidance. A former environmental policy officer claimed that a residential property investment company unfairly selected him for redundancy because of his strong belief about the importance of the environment. The EAT decided that a belief in the importance of the environment and climate change can amount to a philosophical belief. The employee had to establish that his belief:

was genuinely held and satisfied criteria as to the nature of the belief (being more than an opinion or viewpoint)

related to a weighty and substantial aspect of human belief and behaviour

had attained cogency, seriousness, cohesion and importance

was worthy of respect in a democratic society

was neither incompatible with human dignity nor in conflict with the fundamental rights of others.

The case Saini v All Saints Haque Centre (2009, EAT) confirmed that the unwanted conduct has to be generally on the grounds of religion or belief, and is not required to be on the grounds of the employee’s own religious beliefs. Discrimination by association is expressly covered under the Equality Act.

Employees who are dismissed for their political views are expressly protected under the Enterprise and Regulatory Reform Act 2013 and may be protected by the Equality Act 2010 as well. Employees will be protected for holding favourably regarded political views, as well as those views which people find offensive, shocking or disturbing.

There are two main claims that an employee may consider if they are dismissed for their political views. The two separate legal protections are dealt with under separate headings below.

Unfair dismissal

From 25 June 2013, the two-year qualifying period for unfair dismissal claims does not apply where the reason or principal reason for dismissal relates to the employee's political opinions or affiliation.

An employee who can prove they were dismissed for their political views can therefore claim unfair dismissal on day one of their employment.

The Equality Act 2010

Initially when the Equality Act 2010 was introduced, it was thought that political beliefs were not protected at all by that Act. However, as a result of decided cases, it now appears that political views may be treated as philosophical beliefs in some cases. It is therefore safer for employers to assume that political beliefs will be protected and avoid discriminating against employees because of their political affiliation. If the employee is dismissed, they will be able to claim unfair dismissal anyway.

The Act provides protection from discrimination for employees who hold ‘philosophical beliefs’. To count as a philosophical belief the views must be genuinely held and meet the criteria set out in our related FAQ on the definition of religion or belief for the purposes of the religious discrimination legislation – for example a belief must be sufficiently cogent, serious, cohesive, important and worthy of respect in a democratic society.

Case law examples

Initially, UK tribunals decided that a belief in the British National Party (BNP) did not count as a philosophical belief. The law is constantly evolving and it appears that some employees have obtained protection for beliefs which are in reality political views.

In Grainger v Nicholson [2010] IRLR 4, EAT the Employment Appeal Tribunal stated that, while support of a political party 'does not itself amount to a ‘philosophical belief’, a belief in a political philosophy or doctrine such as socialism, Marxism or free-market capitalism might qualify.

The leading case on this issue is Redfearn v The United Kingdom (unreported, [2012] ECHR 1878 6 November 2012, European Court of Human Rights), in which a prospective local councillor for the BNP worked for Serco as a driver transporting children and adults with physical or mental disabilities on behalf of the local authority. A trade union representative contacted Serco saying they were worried about the driver's role because of his racist or fascist beliefs. Serco acted quickly and dismissed him, expressing the dismissal as a redundancy on health and safety grounds. A large proportion of the Bradford population is Asian and his continued employment may have caused anxiety to his passengers and their carers, as well as making the employee a target for attacks, thereby making the bus service unsafe. The driver's presence could also have jeopardised his employer’s reputation and possibly the contract with Bradford Council.

The driver had insufficient length of service to claim for unfair dismissal, so he claimed direct and indirect race discrimination. Eventually the matter reached the European Court of Human Rights (ECHR) for breach of his right under Articles 10 (right to freedom of expression) and Article 11 (a right to freedom of assembly and association).

The driver won his case in the ECHR where it was agreed that at the age of 56 his future employment opportunities were limited, he had been a first-class employee and the employer’s concerns were of predicted problems not actual ones.

The ECHR held that UK law breached Article 11 because it prevented individuals without the qualifying period of service from bringing a claim for unfair dismissal. The ECHR directed that the UK must introduce protection for such individuals either by creating:

an exception to the requirement for the qualifying period for unfair dismissal, or

a free-standing claim for unlawful discrimination on the grounds of political affiliation.

As a result legislation has been introduced, making it easier to claim unfair dismissal based on political affiliations.

Olivier v Department of Work and Pensions (unreported, ET/1701407/2013 ET), concerned a Labour Party supporter has decided that a employee’s belief in democratic socialism could amount to a ‘philosophical belief’ for the purposes of a religion or belief discrimination claim.

His belief related to a weighty and substantial aspect of human life and behaviour and the belief attained a certain level of cogency, seriousness, cohesion and importance.

In General Municipal and Boilermakers Union v Keith Henderson (unreported, UKEAT/0073/14, UKEAT/0075/14 and UKEAT/0314/14 13 March 2015, EAT) the claimant was a GMB regional organiser and part of his role involved undertaking political activities in co-ordination with the Labour Party. During a strike which he was organising for GMB at the House of Commons there were some issues concerning publicity about Labour MPs not being expected to cross the picket line and the left wing wording of a press release.

The claimant believed these issues ultimately led to his dismissal. He claimed unfair dismissal, wrongful dismissal, and discrimination. The Employment Appeal Tribunal (EAT) confirmed that he was fairly dismissed for gross misconduct. Left-wing democratic socialism was capable of being protected as a philosophical belief. However, although left-wing democratic socialism falls within a protected characteristic for the purposes of the Equality Act 2010, on this occasion there was a lack of evidence that it was his beliefs that caused any discriminatory treatment or harassment.

The EAT also emphasised that it was possible to be fairly dismissed and discriminated against.

In Harron v Chief Constable of Dorset Police, (unreported, UKEAT/0234/15 12 January 2016, EAT) a belief that public service is improperly wasteful of money was potentially protected as a ‘philosophical belief’ under the Equality Act 2010. The claimant worked for Dorset Police and claimed a detriment arising from his profound ‘belief in the proper and efficient use of public money in the public sector’ as discrimination based on ‘philosophical belief’. The EAT held that the employment tribunal had not correctly applied the criteria in the Grainger case (see above) and said the employment tribunal should reconsider the case again.

Points for employers

Employers whose employees have strong political views should assume that the employee could be protected under the Equality Act 2010 in relation to those beliefs.

Practical points for employers to consider include the following:

Public-sector employers are particularly at risk of claims based on breach of the Human Rights Act 1998 if they discriminate on the grounds of political belief.

Private employers who do discriminate on political grounds are likely to receive discrimination claims based on the person's philosophical belief, as well as unfair dismissal claims where an employee has been dismissed.

Employers can still argue that an extreme political belief is not worthy of respect in a democratic society and is incompatible with human dignity.

It is still not known if the BNP's views are definitively protected under discrimination legislation. They are protected from unfair dismissal, and it is safer for employers to assume they may be protected during employment and avoid treating BNP members less favourably.

Employees with minority philosophical beliefs still cannot harass other employees by expressing their beliefs with impunity. Even if a belief is protected it can still be voiced unacceptably, especially if it harasses others.

Examples of the different forms of discrimination in a religious or belief context are:

Direct discrimination

An employer 'A' will directly discriminate where, on the grounds of the person's religion or belief, they treat 'B' less favourably than they would treat other persons because:

they follow, or

are perceived to follow, or

do not follow a religion or belief.

For example, direct discrimination would occur where an employer refuses to promote an employee because they are not Jewish.

Direct discrimination occurs when someone is treated less favourably than another because they are thought to have a protected characteristic (perceived discrimination) or because they associate with someone who has a protected characteristic (associative discrimination).

Direct discrimination therefore also covers discrimination against a person by reason of the religion or belief of someone else. For example, a person who is discriminated against because they associate with, or because they refuse to carry out an employer's instruction to discriminate against, Buddhists.

People can bring a claim even if the discrimination was based on incorrect assumptions about their religion or belief.

Indirect discrimination

Indirect discrimination can be summarised as the application of a provision, criterion or practice which is discriminatory in relation to a person with a protected characteristic, in this case religion or belief.

Indirect discrimination occurs where 'A' applies to 'B' a provision, criterion or practice which is applied equally to persons not of the same religion or belief but which:

puts or would put persons of the same religion or belief as 'B' at a particular disadvantage when compared with other persons

puts 'B' at that disadvantage and

'A' cannot show to be a proportionate means of achieving a legitimate aim.

Examples

An organisation requires assistant managers to complete an internal training course as a pre-requisite to promotion and the training courses always take place late on Friday afternoons. This is a provision which is applied to all relevant staff regardless of creed; however, it might put Muslim or Jewish assistant managers at a disadvantage. Such a provision is indirectly discriminatory. It is unlikely that the organisation would be able to show this requirement pursued a legitimate aim and that it was proportionate.

An organisation's uniform policy bans headwear entirely. This is a provision which is applied to all relevant staff regardless of creed; however, it might put Muslim women or Sikh men at a disadvantage. Such a provision is indirectly discriminatory. (There is an exception for the protection of Sikhs in connection with requirements as to the wearing of safety helmets - Regulation 26 of the Employment Equality (Religion or Belief) Regulations 2003).

Victimisation

A person 'A' discriminates against another person 'B' if he or she treats 'B' less favourably than he or she treats others because 'B' has:

brought proceedings against 'A' or any other person under the Act

given evidence or information in connection with any proceedings brought under the Act

otherwise done anything under or by reference to the Act.

The Act makes it clear there is no need to use a comparator to measure the treatment of the ‘victim’ with another person who has not made or supported a complaint under the Act.

An example would be worker 'B' who gives evidence for a fellow worker who has brought a religious discrimination claim in the tribunal, and subsequently 'B' is not promoted as a result of their support. This would be discrimination by way of victimisation.

Harassment

A person 'A' subjects another person 'B' to harassment where, on the grounds related to a relevant protected characteristic, for example on grounds of religion or belief, 'A' engages in unwanted conduct which violates 'B's dignity or creates an intimidating, hostile or degrading environment for 'B'. Harassment takes place if, taking into account all the circumstances, 'A's conduct 'should reasonably be considered' as having violated 'B's dignity or created such an environment for them. Therefore, an over-sensitive complainant who takes offence unreasonably at a perfectly innocent comment would probably not be considered as having been harassed. However, in deciding whether conduct has an intimidating, hostile etc effect, the perception of the victim and the other circumstances of the case must be taken into account.

Examples of harassment would be jokes, nicknames, verbal abuse and physical harassment.

The Act makes it clear that associative harassment is sufficient to establish a claim. Under the Act it is also clear that employees can complain of behaviour that they find offensive even if it is not directed at them. Complainants are therefore protected from harassment because of both perception and association.

Employers may of course be held responsible for any acts of discrimination carried out by employees in the course of their employment (including harassment), although the employees will also be personally liable. In some limited circumstances employers may be liable for acts committed by third parties, although it is becoming harder for employees to establish such claims. Employers are no longer expressly liable for harassment of employees by people (third parties) who are not employees of the organisation, such as customers or clients. Although the government repealed the previous specific protection, employers who fail to protect employees from harassment about their religion or belief are still likely to face liability for breach of contract or under the normal anti-harassment provisions. For more information on acts of discrimination carried out by employees see the Q&A Can an employee sue both an employer and a manager together in the employment tribunal and how does vicarious liability work? in our Tribunal claims, settlement and compromise Q&As and for more information on third party harassment see the Q&A Will an employer always be liable for sex discrimination when it has failed to prevent harassment on the grounds of sex or sexual harassment of one employee by a third party? in our Sex discrimination Q&As.

Other legislation which may arise in a religious discrimination claim

The Racial and Religious Hatred Act 2006 also came into force on 1 October 2007 and created a new offence of incitement to religious hatred. The legislation is not employment related but is a piece of criminal legislation which enables the police to arrest those who use threatening words or behaviour (or display similar written material) with an intent to stir up religious hatred. It is possible that such behaviour in the workplace may lead to criminal offences being committed under the Act, in addition to breaching the existing race and religious discrimination provisions.

Although primarily concerned with protection from sexual harassment the Protection from Harassment Act 1997 could be used in relation to incidents of racial or religious hatred.

Case law guidance on the appropriate amount of compensation in religious discrimination claims continues to emerge. The most crucial aspect to remember about discrimination compensation is that it is uncapped. Compensation for religious discrimination is approached in the same way as other forms of discrimination, but in the cases that have been reported to date, the average awards seem lower than the longer established forms of discrimination. The Employment Tribunals and Employment Appeals Tribunal statistics during the period from April 2014 to March 2015 show an average award of only £1,080 for religious discrimination claims. This compares to statistics during the period from April 2013 to March 2014 which showed a maximum award for religious or belief discrimination of £22,762, a median award of £3,191 and an average award of £8,131.

Following the introduction of tribunal fees in July 2013 there has been a dramatic fall in claims. Employment tribunal statistics show a 70% drop in individual claims between April 2014 and June 2014, relative to the same period in 2013.

For general guidance on the approach to the calculation of compensation in a discrimination context, see our Tribunal claims, settlement and compromise Q&As which address the elements of financial loss, injury to feelings and aggravated damages

The following cases decided under legislation pre-dating the Equality Act 2010 give an indication of the approach to compensation taken under the Act.

In one of the first ever successful cases under the previous legislation, Khan v G and J Spencer trading as NIC Hygiene Ltd (unreported, Leeds Employment Tribunal 13 January 2005), an employment tribunal awarded the claimant compensation of £8,224 inclusive of interest although this may prove to be irrecoverable as the employer was in financial difficulties. For the facts of this case please see the related FAQ Is it indirectly discriminatory to refuse an employee permission to take holiday for a religious holiday?

In the Scottish case of McNab v Glasgow City Council [2007] IRLR 476, ET an atheist maths teacher working at a Catholic school was awarded £2,000 by the Glasgow employment tribunal when he was prevented from seeking for promotion. This claim was made both under the Employment Equality (Religion or Belief) Regulations 2003 and the European Human Rights Convention Articles 9 (freedom of thought, conscience and religion)and 14 (prohibition of discrimination).

In Nicholson v The Aspire Trust (unreported, ET/2601009/04 21 July 2006, ET) the employer was a Christian organisation and the employee was a learning skills adviser who raised a grievance about his treatment, which according to the Tribunal was not handled honestly by the employer. He was found to have been discriminated against on the grounds of his ‘philosophical belief’, namely not being a Christian and received £5,000 for injury to feelings plus a further £2,019.

This issue has perhaps generated more case law and certainly more press coverage than any other single religious discrimination issue. The short answer is that yes, it is probably indirect religious discrimination to have a dress code which prohibits certain types of clothing with a religious link.

The safest and most practical approach for employers is probably to try and follow the Equality and Human Rights Commission and Acas guidance on religion and belief in the workplace which suggests being flexible and reasonable concerning religious clothing, items of jewellery etc. The guiding principle in assisting decision-making concerning employee dress should always be based around the impact of dress upon the employee’s ability to do their job.

UK and EU law

UK law

Under the Equality Act 2010 unjustifiable policies and rules may constitute indirect discrimination, so employers must ensure that policies on dress and appearance are justifiable If a dress code contains a generally applied provision which puts persons of a particular religion or belief at a disadvantage, it will be actionable discrimination unless the dress requirement is proven to be ‘a proportionate means of achieving a legitimate aim’. Legitimate aims to justify rules on dress or appearance could include health and safety or security.

Certain clothing and jewellery such as headscarves, turbans, kippahs (skull caps), modest dress, having a beard, wearing a cross, crucifixes, kara (a Sikh steel bracelet) or Star of David, may be a manifestation of belief. It does not matter if some members of the religion adopt a religious symbol and some do not. For further information on this aspect, see the related Q&A on how an employer decides if an employee’s actions or behaviour are really required by their religion.

EU law

The trend in EU case law currently appears to take a slightly less flexible approach and suggests that a dress code which prohibits all employees from wearing any visible religious, political or philosophical symbols at work may be permissible. The legal analysis at EU level is that such a code:

is not direct discrimination on the ground of religion provided that the ban is founded on a general company rule and not on stereotypes or prejudices against one or more particular religions, or against religious beliefs in general.

is probably indirect discrimination, but this may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard.

Case law examples

Achbita v G4S Secure Solutions NV (C-157/15, 14 March 2017, CJEU) – A Belgian branch of the G4S security company had a rule that employees should not wear any visible religious, political or philosophical symbols at work. The company employed a Muslim receptionist who after three years insisted that she should be allowed to wear a hijab. She was dismissed and brought claims for direct and and indirect discrimination, and wrongful dismissal. The Belgian court referred the matter to the CJEU for guidance. Was the rule forbidding all staff from wearing any visible religious symbols direct discrimination?

The CJEU has agreed with a previous Advocate General opinion in the case, that the ban on religious dress was not directly discriminatory, but could be indirect discrimination, which may be justifiable provided the ban was not based on stereotypes or prejudice against one or more religions, or religious beliefs in general, and was applied proportionately.

(See also Bougnaoui v Micropole Univers, a French case heard by the European court at the same time as the Achbita case, concerning an employee refusing to comply with an instruction to remove an Islamic headscarf while visiting a client.)

Eweida v British Airways plc [2010] EWCA Civ 80 - a British Airways employee working at Heathrow airport was suspended (and then reinstated) for wearing a Christian cross. In 2008 she lost her employment tribunal claim for religious discrimination. She appealed to the Employment Appeal Tribunal, which upheld the tribunal decision. She claimed she lost approximately £3,500 in wages during the three month suspension before British Airways changed its uniform policy to allow all religious symbols to be worn openly. The case was referred to the European Court of Human Rights (ECHR) and combined with the three other cases. The ECHR found the UK had failed to protect a worker’s right to manifest religion because whilst the airline’s aim of protecting its image was legitimate, there was no evidence that wearing religious clothing or symbols had a negative impact on its brand. This seems to contradict with the EU position in the Achbida case which decided that banning Islamic headscarves at work was legitimate to protect the employer's image. For further information, see the related FAQ on how an employer can decide if an employee's actions or behaviours are required by their religion.

Azmi v Kirklees Metropolitan Borough Council [2007] IRLR 484, EAT - the Employment Appeal Tribunal held that it was legitimate for a school to require a Muslim teaching assistant to remove her veil while in class as although this was indirectly discriminatory it was a proportionate means of achieving a legitimate aim which was interacting with and educating the children.

Noah v Desrosiers t/a Wedge (unreported, ET/ 2201867/2007 29 May 2008, ET) - a Muslim hairdresser was unsuccessful in a job application because she wore a headscarf. She won her indirect religious discrimination claim. The prospective employer argued that hairdressers had to display their own hair to advertise the salon's styles. However, this business aim had to be balanced against the applicant’s belief and the tribunal held that the policy of a ban on women with headscarves was not a proportionate means of achieving this aim.

Farrah v Global Luggage Co Ltd (unreported, ET/2200147/2012 July 2012, ET) - this case also illustrates the difference between direct and indirect discrimination. An employer with two shops in London, employed a Muslim employee in the Piccadilly shop who did not initially come to work wearing a headscarf; problems arose when she started to do so. She was moved to work in the Oxford Street shop because the employer wanted to retain its 'trendy' image. She ultimately resigned, claiming direct religion or belief discrimination and unfair dismissal.

She won the unfair dismissal claim as she had effectively been told that if she did not resign she would inevitably be dismissed. However she did not win the discrimination claim as she had brought a direct, and not an indirect, discrimination claim.

The employment tribunal found that:

On the direct discrimination claim there was no evidence that a comparator, namely a woman wearing a headscarf for non-religious reasons, would have been treated any differently. It was the appearance of the headscarf and not the claimant's religion to which the employer objected.

If the employee had claimed indirect discrimination, the provision, criterion or practice would have been the requirement not to wear a headscarf. Muslim women would have had more difficulty complying with that rule than non-Muslim women and so that claim would have succeeded.

The employee received six months' earnings for the unfair claim with compensation was increased by 25 per cent because the employer failed to follow the Acas Code of practice on disciplinary and grievance procedures.

Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery (unreported, UKEAT/0309/13 22 May 2015, EAT) - a nursery assistant wore a jilbab, a flowing outer garment which extended from neck to the floor. At her interview, she was asked if she could wear a slightly shorter garment for work, as the longer jilbab was seen as a trip-hazard.

The nursery assistant complained of religious discrimination. The EAT held that the provision, criterion or practice in relating to dress did not put Muslim women at a disadvantage. There was no evidence of a religious requirement to wear a longer floor-length garment, instead of a shorter ankle-length jilbab which would have been acceptable. Alternatively, if the requirement did put Muslim women at a disadvantage, it was justified anyway.

Points for employers to consider

To avoid such potentially expensive claims and publicity, employers need to handle such matters very carefully. The starting point is to consider whether a dress code is necessary. It is generally acceptable for an employer to adopt an appearance and dress code to minimise accidents and personal injury claims or to sometimes project the correct image for the organisation. Health and safety reasons such as hygiene in hospitals or restaurants may also justify some clothing requirements.

However, a requirement that employees should not wear religious clothing on the basis that it is not trendy enough and does not fit the image of the company is less likely to be a sufficient justification to ban religious clothing or jewellery.

If the nature of the employer’s business is such that a dress code is necessary, the following should be borne in mind:

Keep the dress code in the non-contractual section of the employer’s handbook.

If the dress code is new, give reasonable notice of when it will come into force.

Cross-check any dress code against the main religions' clothing beliefs (see the chart in the appendices of Acas guide on Religion or belief and the workplace).

Cross-check with representatives of a particular religion (if a significant number of employees follow that religion) in drawing up the dress code as this could assist any defence to discrimination claim.

If an employer has a significant number of employees of a particular religion, it may be worth consulting with representatives of that group (the local mosque, for example) in drawing up the dress code as this could aid any defence to a discrimination claim.

Keep the dress standard, although employers will not necessarily be discriminatory if there are different requirements for different sexes.

Watch for potential issues for disabled employees as well.

Employers will need to demonstrate that the dress code is justified and proportionate and that they have carefully balanced the disadvantage to some groups of the code against the reason for having the code in the first place.

Employers may believe they have a reasonable business reason for asking employees who are dealing with customers to remove piercings or cover tattoos while at work. Employers must have sound business reasons for requiring these dress codes which should be contained in a policy which communicates the standards are expected equally to everyone.

If employees refuse to comply, employers should explain their concerns and the reasons for the dress code or requirement. The employee should be given the opportunity to explain why they do not wish to comply. If employees do not conform the disciplinary procedure may be invoked in appropriate cases.

EHRC and Acas guidance

It is potentially indirectly discriminatory to refuse an employee time off for a religious holiday, but whether it can be justified will depend upon the facts. For example, a small gift shop would be able to justify refusing to release an employee for a religious holiday during the Christmas shopping period. However, a large shop of several hundred employees would not be able to justify such a refusal during that period if other staff were able to cover.

Employers should carefully consider their criteria for granting leave where sufficient holiday leave is available and whether a refusal would indirectly discriminate; discussion and flexibility are crucial when considering such requests.

Case law examples

Two case law examples are given below. Although they were decided before the Equality Act 2010 they remain useful guidance as to how the religious discrimination provisions work in practice.

The first successful discrimination case based upon the Employment Equality (Religion or Belief) Regulations 2003 concerned the issue of religious holidays. In Khan v G and Spencer trading as NIC Hygiene (unreported, Leeds Employment Tribunal 13 January 2005) an employee was awarded over £8,000 in compensation for religious discrimination in breach of the Regulations. He had requested six weeks' leave to perform hajj, a pilgrimage to Mecca, the birthplace of Islam. Carrying out this obligation is one of the five 'pillars of Islam' or central duties of the believer and should be undertaken by every adult Muslim at least once in their lifetime if possible. The employee asked to use his 25-day holiday entitlement and another week's unpaid leave, but he received no response and made a further written request. The company failed to respond and his manager said that if he heard nothing he could assume it was all right. He made that assumption and went on the journey. When he returned he was suspended without pay and then dismissed; this was held to be in breach of the Regulations.

In Fugler v Macmillan-London Hair Studios Ltd (unreported, ET/2205090/0 15 July 2005, ET) a Jewish employee working in a hairdressers successfully claimed indirect religious discrimination when he was prevented from taking time off for Yom Kippur. This was as a result of the application of the employer’s policy to discourage all employees from taking leave on Saturdays. Although the employer had a legitimate aim to serve customers on the salon’s busiest day, the balancing exercise meant that the employer should have tried to rearrange this employee's duties to accommodate this very important festival.

However, the employee’s compensation was limited in this case to £500 for injury to feelings, as he had not booked time off in advance for Yom Kippur.

It may be indirectly discriminatory to require an employee to work on a certain day, for example Sunday. Some case law examples are given below. Although these were decided before the Equality Act 2010, they remain useful guidance as to how the religious discrimination provisions work in practice.

Case law examples

In Williams-Drabble v Pathway Care Solutions Ltd (unreported, Nottingham Employment Tribunal 10 January 2005) it was found that a new shift rota system requiring the claimant (who was a Christian employee) to work on Sunday at times which prevented her from attending church, constituted religious discrimination. She had expressly told the company at her interview that she could not work on Sundays. She also won a constructive unfair dismissal claim as there was a fundamental breach of the employer's implied contractual duty of trust and confidence. She received compensation of £4,000 for injury to feelings and a further £1,001.

Accordingly, religious discrimination claims can succeed when an employee is required to work on a certain day, depending on the overall facts including availability of other staff.

The law is less clear as to whether this will also be a breach of human rights and/or an unfair dismissal. In Copsey v WWB Devon Clays Ltd [2005] this issue was considered by the Court of Appeal. A practising Christian was dismissed for refusing to agree to vary his hours so he could work a 7-day shift including a Sunday. He claimed:

constructive unfair dismissal alleging the real reason for dismissal was his religion and

infringement of his freedom to manifest his religious beliefs under Article 9 of the European Convention of Human Rights (ECHR).

The CA held that the employee's freedom to manifest his religious beliefs, under Article 9 of the ECHR was not infringed by his dismissal for refusal to agree to Sunday working. On these facts the employer had not failed to make reasonable accommodation for the employee's religious beliefs.

By contrast, in Mba v The Mayor and Burgesses of the London Borough of Merton [2012] the EAT ruled that a council did not unlawfully discriminate against a devout Christian when it asked her to work on Sundays at a residential home for children with severe learning difficulties. At the recruitment stage, the manager had explained to the claimant that all staff had to work a shift rota that included weekends and she replied that she would have 'difficulties' working on Sundays. She did not say that her beliefs meant that she could never work on Sundays. For a period of time she was not allocated work on Sundays and the employer tried to recruit additional staff for the Sunday work, but was unsuccessful. Eventually she was told she would face disciplinary action if she did not cover some Sundays. She eventually resigned, claiming indirect discrimination on the ground of religion or belief and constructive dismissal.

The EAT held that the employer had applied a provision, criterion or practice to the claimant, namely the working of some Sunday shifts in accordance with the rota. This would put persons of the same religion as the claimant at a particular disadvantage when compared with others and that she was put at such a disadvantage.

However, the employer succeeded in showing that the requirement was reasonable and a proportionate means of achieving a legitimate aim. It had tried very hard to accommodate her beliefs, but also had to balance an appropriate gender and seniority balance on each shift, fair treatment of all staff, compliance with legal limits on working time and limited use of agency and bank workers. Interestingly, the tribunal also concluded that the belief about Sunday working was not a core component of the Christian faith and also found that the employer had not breached the implied term of trust and confidence and therefore there was no constructive unfair dismissal.

The EAT judgment does not make an overall ruling about an individual's right not to work on a Sunday or an employer's freedom to insist upon Sunday working. In this particular case, the employer had established a legitimate aim, as it appeared that there was no viable alternative to working on Sundays.

These cases suggest that the law on this point may be open to further challenge. In any event it is very clear that employers must try to minimise the impact of changes to working hours on employees who hold strong religious beliefs (for example by offering alternative jobs where they can).

Basically employees should not be forced to keep their religion hidden at work. However they should not try to convince others to 'convert' or change their religious beliefs.

If one employee tries to convert another employee, this is usually inappropriate and the employer should intervene.

Generally, disciplining an employee for manifesting a religious belief would be unlawful discrimination. However disciplining an employee for improperly promoting religious belief in a way that was not consensual is not unlawful discrimination. The employee who is attempting to convert others may be committing misconduct, leading to disciplinary proceedings against them, depending upon the content of the conversations and the pressure to try and convert others.

The issues can be illustrated by the case of Wasteney v East London Foundation NHS Trust (unreported, UKEAT/0157/15 26 February 2016, EAT) where a born again Christian manager working for a NHS trust had prayed with a junior Muslim employee, then laid on hands, donated a book which concerned the conversion to Christianity of a Muslim woman and invited her to various services and events at her own church. This was unwanted attention and the junior employee complained.

The Trust found the manager guilty of serious misconduct by subjecting a junior colleague to improper pressure and unwanted conduct and was given a formal warning. She claimed unlawful religious discrimination and harassment. The Employment Appeal Tribunal and the employment tribunal rejected those claims. Even though Article 9.1 of the European Convention on Human Rights gives freedom of thought, conscience and religion this did not give employees a complete and unfettered right to discuss or act on their religious beliefs at work irrespective of the views of others. In any case Article 9.2 of the European Convention on Human Rights takes into account the rights and freedoms of others.

If the employer was entirely ignorant of the employee’s belief, the claim will not succeed. Treatment cannot be on the grounds of the employee's religion or belief if the employer had no knowledge of it. Interestingly it does not appear to matter if the employee has taken some actions or activities which appear to be contrary to their beliefs. The tribunals have acknowledged that many people have to compromise over their belief at some point in their lives and cannot fight each and every battle.

In the case Streatfeild v London Philharmonic Orchestra Ltd (unreported, ET/2390772/2011 July 2012, ET) a violinist with the London Philharmonic Orchestra put her name on a letter sent to a newspaper, criticising an invitation to the Israel Philharmonic Orchestra to perform at the 2011 Proms. She did this because of her humanitarian views of the Israeli Government and their persecution of Palestinians. She used the letters 'LPO' which linked her to the orchestra. She was disciplined and then suspended on full pay for six months on the basis that she had publicly criticised her employer in a national newspaper, causing serious damage to the LPO's reputation. She brought claims of direct discrimination, victimisation and harassment on the ground of her 'philosophical belief in humanism'.

The case decided three major points:

Unsurprisingly, humanism amounted to a philosophical belief under the Equality Act 2010.

Did the claimant have a genuine belief in humanism? The employment tribunal concluded that her education and choice of partner and how she educated her children all suggested a genuine and strongly held belief. There were examples of her acting inconsistently, such as agreeing to go on tours to China and playing with the Israel Philharmonic Orchestra. However, the tribunal accepted some compromise over belief as being inevitable.

Did the employer have knowledge of the employee’s beliefs? Apart from one reference to a humanitarian motivation, nothing emerged in the disciplinary process to suggest to the LPO that the claimant had humanist views. As the employer did not know of her beliefs she lost her claim.

Employees may seek permission to wear certain symbols or forms of dress, time off work for prayers or festivals, or changed work duties to meet religious or belief needs. An employer does not have to decide if these actions or behaviour are really required by an employee's religion. An employee may be protected even if the religion does not require them to act as they do. Employees are protected if they decide to follow a practice motivated, influenced or inspired by their religion or belief. As long as the practice is sufficiently linked to the religion or belief it will be protected, regardless of whether it is a mandatory requirement of that religion or belief.

Until the leading cases outlined below, the European Court of Human Rights (ECHR) and the domestic courts said that a practice was protected only if it was required by the particular religion or belief. This is no longer so. The leading cases which were heard by the ECHR were brought by Christians in the UK. However, the implications of the judgments apply to employees with any religion or belief, or none. The judgments affect employer policies and practices affecting religion or belief rights in the workplace and the rights of employees (including job applicants).

The cases

These two cases required the ECHR to decide if the restriction on two Christian employees wearing a cross over their other clothing at work amounted to an interference with their right to manifest their religious belief. It also had to be decided whether there was a breach of the State's obligation to protect their rights under Article 9 of the European Convention on Human Rights. Eweida and Chaplin were both prevented by their employers’ dress codes from wearing their crosses.

In the case of Eweida, the EHRC decided that her Article 9 right to manifest her belief was unjustifiably breached. Her desire to wear a visible cross did not adversely affect the employer’s corporate image.

In the case of Chaplin, a nurse, the EHRC unanimously concluded that the health and safety of staff and patients outweighed her right to wear a visible crucifix on a chain around her neck. Although the employer's decision did interfere with her Article 9 rights, it was justifiable on health and safety grounds.

When asked about the Eweida case during Prime Minister's Questions, the Prime Minister personally indicated that he will introduce legislation to ensure workers can wear religious symbols at work.

These cases involved two Christians who stated their religious views on same-sex relationships were not taken account of at their place of work. One employee was dismissed for refusing to counsel same-sex couples and the other employee was disciplined for refusing to conduct civil partnership ceremonies between same-sex couples. Ladele and McFarlane both objected, due to their religious beliefs about marriage and sexual relationships, to carrying out certain work duties in respect of same-sex couples. The EHRC decided against both of them. The UK courts had wide discretion to strike a balance between competing Convention rights. Although the loss of a job was a severe sanction with grave consequences, the wide discretion to determine the right balance between manifesting religious belief and sexual orientation rights had not been exceeded.

Key points for employers

As a result of these cases it will be easier for individuals to establish rights to manifest religion or belief. The courts will now focus on assessing whether any interference with such rights is justifiable, not on what the religion actually requires.

An employer should take all religion or belief requests seriously and should not make assumptions about the significance of a religion or belief.

Employers should start by exloring how to permit a request unless there are good, cogent or compelling reasons to justify refusal.

Employers cannot expect employees like Eweida, Chaplin, Ladele and McFarlane to resign and look for other jobs where they can observe their religion or belief more easily.

The possibility of seeking other employment is still a relevant factor for courts to evaluate when considering whether or not an employer’s policy or practice is proportionate.

Employees may be protected provided that the behaviour or practice is genuine and broadly motivated, influenced or inspired by their religion or belief.

Employers should take a balanced view of the needs of the employee regarding their religion or belief.

Employees have a right to promote their particular religion or belief when at work, where it is appropriate to do so without causing distress or harassment.

Employees can refrain from some work duties depending on how crucial those duties are, the needs of the business and the effect on other employees and on customers.

It does not matter that different employees choose to manifest their religion differently from other employees or others of the same religion.

Employers must consider whether the aim they are pursuing is legitimate and if so, whether it is being pursued by proportionate means.

Employers should keep policies and practices affecting religion or belief under review to ensure that they do not discriminate against an employee who holds a particular belief.

Employers should balance the competing needs of the employee sensitively and carefully. This involves looking at the impact on the business, the impact on the individual making the request and on other employees and customers if the request is or is not granted.

Employers should remember that different treatment may be possible without breaking the law.

The Equality and Human Rights Commission has published a companion guide explaining how employers can recognise and manage the expression of religion or belief in the workplace whilst complying with these judgments. This guidance and more information on the cases is available on the ECHR website.

Questioning an employee's beliefs

An employer should not question a belief except in the most extreme cases where the sincerity of the belief of an employee is genuinely in doubt. Employers do not need to be experts in the relevant religion or belief. It will usually be obvious where beliefs are really obscure, or appear unreasonable. Employers can ignore requests when they reasonably conclude that the belief is not sincere.

However, an employer who starts thinking something like 'I know plenty of people who are Christian and they do not do that...' is starting to approach the matter incorrectly.

In essence, employees can choose how they want to act upon their beliefs; in both the Eweida and Chaplincases outlined above, it was decided that the wish to wear a cross/crucifix visibly at work, although not required by the religion, was still a manifestation of belief attracting the protection of Article 9 of the European Convention on Human Rights. These leading cases which were heard by the European Court of Human Rights (ECHR) provide guidance for employers on how they should deal with similar issues.

In order to show that a worker has been treated less favourably than other persons in a direct claim, a suitable comparator has to be identified.

For example, if an accountant complains that they have not been promoted because they are an atheist working for a predominantly Christian firm, the correct comparator would be an accountant in the same position save for the fact that they are not an atheist.

If a real comparator cannot be identified then a hypothetical one may be identified.

It is difficult to justify discriminating against an employee on the grounds of their religion or belief. If the claim is for direct discrimination, it will be impossible to justify the discrimination. The only defence in these circumstances will be if the employer can show an occupational requirement, in which case they may be able to rely on that reason. This will be very rare indeed.

The employer would have to show that:

being of a particular religion was an occupational requirement

it was a proportionate means of achieving a legitimate aim to apply that requirement in the particular case.

The requirement must be crucial to the post. An example given by Acas is that a butcher seeking a halal butcher would be entitled to discriminate against non-Muslims and this would amount to an occupational requirement.

Case law examples

Below are some case law examples under legislation which pre-dates the Equality Act 2010, but which remain useful guidance as to how the religious discrimination provisions work in practice:

In Sheridan v Prospects for People with Learning Disabilities and Hender v Prospects for People with Learning Difficulties (unreported, ET/2901366/2006 and ET/2902090/2006, ET) the employer, a Christian charity which helped adults with learning difficulties, failed to establish a genuine occupation requirement exception. The charity required most of its staff (with the exception of some administrative positions) to be practising Christians. Existing non-Christian employees were told that they would not be promoted. Two employees resigned and claimed constructive unfair dismissal and religious discrimination. Being a Christian was not a genuine occupational requirement of working for the charity as the jobs could be carried out by individuals not of that religion.

If the claim is for indirect discrimination, the employer will be able to justify their provision criterion or practice if it pursued the employer’s legitimate aim and that it was proportionate.

In Mayruff v The Governing Body of Bishop Challoner Catholic Collegiate School and another (unreported ET/3202398/04 21 December 2005, ET) an employer established that a school’s timetabling requirement was a proportionate means of achieving a legitimate aim. The mathematics teacher therefore lost his claim of religious discrimination concerning the timetabling of a class between 1.20 and 2.10pm on a Friday afternoon. The teacher claimed that this was discriminatory as it meant he could not attend Friday prayers in a mosque. The school successfully justified their timetabling requirement on the basis that the absence of the teacher on a weekly basis would be disruptive and damaging to the students’ interests.

In Cherfi v G4S Security Services Ltd(unreported EAT/0379/10 24 May 2011, EAT), which concerned taking time off to attend a mosque, the Employment Appeal Tribunal decided that the employer could justify its refusal to allow a Muslim security guard to leave the site to attend prayers. The guard left the site where he worked at Friday lunchtimes for about an hour, to attend the mosque. Eventually a new manager told him that the client required attendance all day, including during lunch breaks or they may lose the security contract. There was a prayer room on site available for the guard to use. The employer offered a new shift pattern so that he could work Monday to Thursday and then either Saturday or Sunday, but he refused this. After the discussions, the guard took every Friday as sick leave or paid or unpaid annual leave and when the employer disciplined him he left, claiming direct and indirect religious discrimination.

He won one claim of direct discrimination owing to the way the disciplinary action was handled. However, the indirect discrimination claim failed. Although the employer had applied a provision, criterion or practice to the guard which placed him at a disadvantage as a practising Muslim, this was justified as a proportionate means of achieving a legitimate aim, namely the operational needs of the employer’s business.

There is scope for potential conflict between the sexual orientation and religion or belief protected characteristics under the Equality Act 2010. For example, what happens if a person with strong religious views is sacked for objecting, in accordance with the religious convictions of a significant number of that religion's followers, to working alongside a gay man? There have been a number of tribunal cases arising as a result of difficulties arising between employers and employees with strongly held religious beliefs and other gay, lesbian or bisexual employees.

If employees assert the right to discuss their religious beliefs in the workplace, employers should not prevent such conversations (unless it is a proportionate means of achieving a legitimate aim to do so). If such comments amount to harassment of other people, then the employer must act to stop it. (Harassment is unwanted conduct that is reasonably viewed as violating dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for other people.) Employers may be justified in limiting the freedom of employees in promoting their religious beliefs at work if those freedoms mean one employee acts inappropriately towards another.

Religious and belief discrimination claims can arise from matters related to sex and sexuality in ways that employers may not have considered. For example in Pendleton v Derbyshire County Council (unreported, UKEAT/0238/ 29 March 2016, EAT) the Employment Appeal Tribunal held that it was potential indirect religious discrimination to dismiss a teacher for refusing to leave her husband. The teacher had many years of good service. Her husband, a Headteacher at another school, was convicted for sex offences, including making indecent images of children and voyeurism. The school dismissed the teacher for failing to end the marriage, as it felt her actions could be taken as condoning his behaviour. The teacher decided to stay with him provided he showed repentance, as her Christian faith meant that she regarded her marriage vows as sacred.

The teacher won an unfair dismissal claim as the school failed to show that the dismissal was for gross misconduct or some other substantial reason. Her claim for indirect religious discrimination was also upheld.

For more information and case law examples see the Q&A Can an employer with strongly held religious beliefs refuse to employ an employee on the grounds of their sexual orientation? in our Sexual orientation discrimination Q&As.

It is worth emphasising that if the employment is actually for the purposes of an organised religion then an employer may apply a requirement related to sexual orientation to:

comply with the doctrines of the religion, or

avoid conflicting with the strongly held religious views of a significant number of that religion's followers.

For example, it would not be discriminatory to require a minister of religion to be heterosexual if that was to avoid conflicting with the strongly held religious views of a significant number of that religion's followers. That requirement would clearly be related to the nature and context of the work. However, an employer could not apply the same requirement to, for example, a cleaner working in the church as that is not related to the nature and context of the work.

If an employee refuses to carry out certain work duties for religious reasons, it is once again a question to be assessed on the facts and also is a question of degree. An employer should carefully consider every request from an employee to opt out of a part of their job requirements for religious reasons.

The employer should consider:

how significant a part of the job the employee wishes to opt out of

whether other employees can cover for the employee making the request so that it does not affect the effectiveness of the organisation

the impact on the employee

the impact on the employer and the service offered by the organisation

if there is any other work the employee can undertake instead.

For example, a vegetarian employee working in a supermarket refuses to cover shifts on the meat counter in order to comply with her beliefs. The manager recognises that not all vegetarians have the same objection, but accepts in this case that the request is genuine and sincere. The manager reorganises the rotas so that this employee covers the pharmacy section in the supermarket and decides to exempt the vegetarian employee from the meat counter shifts.

In certain specific situations there are legal permissions which enable employees to opt out of certain aspects of their role, for example medical staff can opt out of performing abortions, or carrying out embryo research or fertility treatment.

Yes, this situation is catered for under different regulations. The Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations 2003 (SI 2003/2037) enable independent schools with a religious character to give preference to teachers whose religious beliefs accord with the religious tenets on which the school is based.

Caste discrimination

The government decided in July 2018 not to go ahead with an option to add caste to the definition of race as a ‘protected characteristic’ under the Equality Act 2010 and, instead, to rely on case law on this point. The EAT decided, in the case Tirkey v Chandhok (2015), that the Act’s definition of race discrimination already covered caste where this relates to ethnic origin. The case is binding on tribunals, and there is a steady stream of religious and belief discrimination cases, but the government has said it will support a case on caste in a higher court, if need be.

Brexit

For information on what Brexit could mean for employment law, visit our Brexit hub.